Those Who Ignore History

Last week the federal Department of Labor announced the oddly named H-1B One Workforce Grant Program, funded to the tune of $150 million. Its aim is

…to invest in training for middle- to high-skilled H-1B occupations within key sectors in the U.S. economy, including information technology and cyber security, advanced manufacturing and transportation, to upskill the present workforce and train a new generation of workers to grow the future workforce…

Through local public/private partnerships, grantees will deploy training to provide individuals in their communities with skills necessary to advance career pathways to employment in middle- to high-skilled H-1B occupations within key industry sectors. Training models will include a broad range of classroom and on-the-job training, customized training, incumbent worker training, Registered Apprenticeship Programs and Industry-Recognized Apprenticeship Programs.

It uses the language of 2020, but is a replay of the old industry lobbyist line, “We need H-1B workers now, to fill our tech labor shortage, but through training we’ll grow our own domestic workforce to alleviate the need for the visa program.” I say “old” line indeed, as it goes back to 1998, the year of the first industry push to expand the H-1B program.

The legislation enacted that year nearly doubled the visa cap, temporarily, and established a user fee, in which employers paid into a fund to retrain American workers. Two years later in 2000, a second increase was enacted; the industry convinced Congress and Bill Clinton that there was still a need for H-1Bs. Yet within months the Dot Com Boom burst, with massive layoffs in the tech world.

Putting aside the point that the industry almost certainly knew the implosion was coming when they argued for another increase in work visas, the point here is that the user-fee-funded training program remained. It turned out to be a failure, as some of us had predicted back in 1998. As I wrote in my 2003 article in the University of Michigan Journal of Law Reform (emphasis added),

…to address the skills issue Congress added another major provision in the new law, insisted on by Clinton and some leading Democrats. It established H-1B user fees which would fund retraining programs, with the goal of training American workers to fill jobs then being filled by H-1Bs. This provision too was doomed from the outset. In addition to the allegations made that employers were using the skills issue merely as a pretext to avoid hiring older workers—in which case retraining would be useless—the training funds ended up being used largely to train workers for technician jobs, which are not normally filled by H-1Bs anyway. Two years into the program, Sun Microsystems a major Silicon Valley firm that had been at the forefront of lobbying Congress to expand the H-1B program in 1998, stated that the training programs had not reduced—and, more tellingly, they could not reduce—its dependence on H-1Bs. Later, the Bush administration also concluded that the program had failed to achieve this, its stated goal, and proposed canceling it.

Last week’s announcement by the DoL has the same flavor as the one in 1998: Give workers modern skills through relatively short-term training programs, often with apprenticeship titles, in contrast to the fact that H-1B visas are for jobs requiring a bachelor’s degree, typically a master’s in the case of Silicon Valley. We again see an enthusiastic buy-in by industry, and will again see in a few years a Sun Micro-style denial in the industry that they never intended the 2020 program to reduce their dependence on H-1Bs.

Worst of all, of course, is the implied message that we have a tech labor shortage in the first place, which no study (other than industry-sponsored ones) has ever found. To be clear, yes, some non-tech Americans will benefit, but the program won’t reduce the income of immigration lawyers.

On that score, how has the Trump administration done in terms of H-1B? Recall that I had predicted in 2015, as Trump was just starting his run for office, that he would punish the “Infosyses,” the Indian-owned outsourcing firms, while rewarding the “Intels,” the mainstream firms that hire as H-1Bs foreign students from US university campuses. In fact, Trump has acted quite onsistently with that prediction.

Earlier this year, for example, Trump declared he was banning the entry of new H-1Bs to the US until at least December. The key word is “entry”; the ban does not apply to foreigners already here, i.e. the international students at US schools. So foreign students were effectively exempted from the ban.

This past week, the Trump administration announced that student visas would now be restricted to four years’ duration. For those pursuing a bachelor’s degree, this would prevent them for working in the US after graduation under the Optional Practical Training program, which is used as a holding pattern by foreign students while they wait for an H-1B visa. Since OPT runs as part of the F-1 student visa, they would apparently be out of luck. But the master’s students — the industry’s “sweet spot” — would have two to three years of OPT time. So again, the Intels will be accommodated.

The pending executive order on H-1B is also said to set a policy under which the visas are doled out in order of offered salary, highest wages first. I do support this, but again it clearly is aimed at protecting the Intels while “doing something” about the visa program.

So, the Trump administration should get no more than a C- report card on H-1B. Biden has indicated he would not reverse Trump’s H-1B policy, which is probably true. The Democrats are just as beholden to the Intels as the GOP is; after Clinton signed the 1998 legislation, he went on a fundraising tour of Silicon Valley.

12 thoughts on “Those Who Ignore History

  1. This sounds like it’s been promoted by the training industry, hoping to make a quick buck out of the government. They will probably even use visa workers to provide the “training.”

    As you correctly point out, Norm, the program has nothing to do with hiring in the tech industry.

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  2. “This past week, the Trump administration announced that student visas would now be restricted to four years’ duration”
    The proposed changes, F1 status is currently “duration” where the school keeps track of the students, and the proposed change is to 4 years, having the student and school obligated to justify with USCIS being here past that. Longer stays due to class availability delays, starting OPT, etc., are not banned, but is no longer solely at the school’s behest. They’re attempting to capture and likely deny the growing number of Perpetual (visa’d) Students, jumping from school to school, degree to degree, to avoid leaving, which is currently at the discretion of the schools.

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    • Yes. There are also new lifetime restrictions in there on the number of programs one can pursue on an F-1 visa at a given educational level. I believe it is no more than 3 (which is still ridiculous IMO – it should be no more than 2, and, if 2 are indeed done the student should be banned from entering or staying in the US for 5 years after graduating). Also, only one switch to a lower educational level will be allowed on F-1, apparently for PhDs who want to pursue MBAs *eyeroll*.

      OPT was already restricted to once per educational level, but CPT was (and still will be) not. Again ridiculous. CPT should be eliminated outright, and only the pre-completion OPT (which needs USCIS approval unlike CPT, which can simply be approved by the school, and is subtracted from the time allotted for OPT in total) should be used. There is no need for practical training after graduation if one already obtained it during the course of the degree program. As it currently stands, CPT is mostly used by Indian grifters to continue working while bouncing around fake Master’s degree programs, waiting to get selected in the H-1B lottery.

      https://www.federalregister.gov/documents/2020/09/25/2020-20845/establishing-a-fixed-time-period-of-admission-and-an-extension-of-stay-procedure-for-nonimmigrant

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    • Sorry, the above should be “The visas will be (typically) limited…” instead of “The visas are (typically) limited…”. There are no limits as of now.

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    • I find it amazing that international students feel that they should be able to influence US government policies. Almost all of the comments I read were from foreign nationals claiming that the US policy us xenophobic, unreasonable, unfair, stupid,…

      The regulations proposed are to benefit the US, its citizens and institutions.

      I believe the policy did not go far enough and believe the following are reasonable additional requirements on international students:

      1 – They must return to their home country for at least as long as they were in the US on a study/training visa before they can apply for a work or family based immigration visa (otherwise they will be looking to marry a US citizen and have anchor babies).

      2 – They also use study/training visas to bridge the gap between graduation day and a work visa. Prohibit a student who comes on a student/trainee visa from obtaining a work visa if they do not complete the degree/training program they enrolled in to obtain the educational visa.

      3 – Require J-1s (post docs, etc.) to meet the first step in licensure where that is available (I.e. engineering intern for engineering and many IT degrees) and also be graduates of foreign programs that have international accreditation (AACSB for business schools), Mutual recognition Agreements (such as the Seoul Accord for information technology), etc.

      4 – Stop forgiving the Home Residency Requirement for J-1 visas. Having a US citizen baby should not mean a person should have the home residency negated by claiming a hardship to the US citizen child.

      5 – Require security and police clearances for all applicants.

      6 – Deport and ban visa holders who commit even petty crimes of moral turpitude (DWI, theft including shoplifting, sex offenses, etc. Run credit checks for renewing visas;(Recent forum postings indicate there is no concern about running up large credit card balances and leaving the country. They question if they will be stopped trying to reenter for more work opportunities.)

      7 – Prohibit J-1 visa if the stipend is ti be paid by a foreign government (including the military)

      8 – Do not grant any visas for study or work at educational institutions that are not accredited in the field of proposed study. There are too many no-count, diploma mill universities offering masters and PhD programs

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      • Rather, the F-1 student visa should simply be ended except for the very top students. A few widely highly regarded, hard, and academically rigorous programs at Harvard and MIT should be the only ones that qualify to receive F-1s.

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  3. About 2 decades ago, I first learned about the H-1B visa issue from a 60 Minutes episode. A couple dozen Indian males were brought in to replace a firm’s IT workers – think it was New Jersey.

    One of the Indian programmers admitted, “This would never happen in our country”.

    Only in America does the government pay to train foreign workers while our older IT workers can’t get hired.

    What a crying shame!

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  4. From the near bottom of the link, “Veterans, military spouses and transitioning service members will receive Priority of Service.”

    From another source, “This (priority) means that a veteran or an eligible spouse either receives access to a service earlier in time to a non-covered person or, if the resource is limited, the veteran or eligible spouse receives access to the service instead of or before the non-covered person.”

    This is clearly a veteran’s job program. Others need not apply. This should have been mentioned in the headline of the DOL’s News Release.

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